The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Each Defendant moves for dismissal under Federal Rule of Civil Procedure ("Rule") 12(b)(6) of all Plaintiff's claims, arguing Plaintiff fails to state a claim upon which relief can be granted. Each claim concerns a foreclosure action against Plaintiff's real property. Plaintiff failed to oppose the motions.
For the reasons stated below, the motions on Plaintiff's federal claims will be granted and Plaintiff's state claims will be remanded to the San Joaquin County Superior Court in California from which this case was removed.
A. Federal Fair Debt Collection Practices Act ("FDCPA") Claim Each
Defendant seeks dismissal of Plaintiff's federal unfair debt collection practices claim alleged under the FDCPA, arguing this Act is inapplicable to them because it applies only to "debt collectors" and they are not debt collectors within the meaning of the Act. Plaintiff alleges Defendants are liable under this Act because they "failed to inform [her] of her right to request validation of the alleged debt Defendants were attempting to collect, . . . failed to verify the alleged debt as [Plaintiff] requested in [a letter demanding suspension of the foreclosure sale until the debt had been verified], and failed to suspend their collection [of the debt] until the debt had been verified, as required by 15 U.S.C. § 1692g." (Compl. ¶¶ 41-42.) Plaintiff's allegations however allege that Defendants are engaged in a foreclosure action against her property; this action is not collection activity "within the meaning of the FDCPA." Ines v. Countrywide Home Loans, Inc., No. 08cv1267, 2009 U.S. DIST. LEXIS 21016, at *2 (S.D. Cal. March 12, 2009) (stating the "activity of foreclosing on a property pursuant to a deed of trust is not the collection of a debt within the meaning of the FDCPA." (quoting Hulse v. Ocwen Fed. Bank, FSB, 195 F. Supp. 2d 1188, 1204 (D. Or. 2002))). Therefore, this portion of each Defendant's motion is granted.
B. Truth in Lending Act ("TILA") Claim Each
Defendant seeks dismissal of Plaintiff's federal rescission claim, arguing that the three year statute of limitations bars this claim. Plaintiff alleges in this claim that she is entitled to rescission of her loan based on Defendants violation of TILA when they failed to inform her of changes made in the finance charges on the TILA statement and when they improperly calculated the disclosed amounts on that statement. Title 15 U.S.C. § 1635(f) of the TILA prescribes that an obligor's right of rescission "shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first."
Defendants argue this claim is barred by the three year statute of limitations period since the loan was consummated on October 31, 2005, and Plaintiff waited until January 15, 2009 to file this case in state court. Defendants seek to have the court take judicial notice of documents supporting their position that the loan was consummated on October 31, 2005. Specifically, Defendants request judicial notice be taken of Plaintiff's Deed of Trust ("DOT") and a Notice of Default and Election to Sell ("Notice of Default") in which this is shown. (Req. for Judicial Notice, Ex. A and C)
In general, when ruling on a motion to dismiss, the court may not consider materials other than the facts alleged in the complaint. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, the court may consider materials Plaintiff referenced in the complaint if the documents are central to her complaint and no party questions their authenticity. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). Plaintiff references in her Complaint the documents that Defendants seek to have judicially noticed. (Compl. ¶¶ 6-10). Since the authenticity of these documents has not been questioned, judicial notice is taken of these documents. The DOT and the Notice of Default reveal the loan was consummated on October 31, 2005, which is more than three years before Plaintiff commenced this case in state court on January 15, 2009. Therefore, this portion of each Defendant's motion is granted.
C. Home Ownership and Equity Protection Act ("HOEPA") Claim Each
Defendant seeks dismissal of Plaintiff's federal claim in which Plaintiff alleges each Defendant violated HOEPA. Plaintiff alleges Defendants violated HOEPA by "fail[ing] to provide the disclosures regarding the right of rescission required by 15 U.S.C. § 1639(a)(1) or [by] fail[ing] to provide them in the manner required; and [by] extend[ing] credit to Plaintiff without regard to [her] ability to repay in violation of § 1639(h)." (Compl. ¶ 49.) Defendants argue HOEPA's protections do not apply to the residential mortgage transaction in this case. Defendants are correct. Title 15 U.S.C. § 1602(aa)(1) prescribes that a mortgage "means a consumer credit transaction that is secured by the consumer's principal ...